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07/20/2009
By Michelle Saxton
CHARLESTON - West Virginia officials are trying to determine if the state is in compliance with a federal act that would result in more stringent listings in the national sex offender registry - or whether it's really worth trying to comply.
West Virginia State Police Sgt. Michael Baylous said the federal act would affect numerous agencies in the state.
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At this time the Department of Military Affairs and Public Safety has determined that in the interest of providing efficient governmental services it would be counterproductive to comply with the requirements of the Adam Walsh Act," Baylous said.
The
Adam Walsh Child Protection and Safety Act of 2006 requires sex offenders to be grouped into three tiers for a national registry, House Judiciary attorney Stacy DeLong said.
Tier 1 includes a 15-year registration for a "
catchall" of misdemeanors and felonies; Tier 2 includes a 25-year registration for sexual offense cases involving minors and child pornography; Tier 3 is a lifetime registration for cases involving force, threat, children under 12 and kidnapping, DeLong said.
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This is all retroactive," DeLong said.
- And that is a violation of the ex post facto clause of the US and State Constitutions!
Sen. Evan Jenkins (
Email), D-Cabell, who has pushed for public access to registered sex offenders' Internet aliases, such as screen names, asked if the federal law requires this information in the registry as well.
- Hell, your a senator, why don't you review the law yourself? I checked, and it doesn't appear to me like it does. So why could you not do that?
The federal law would require screen names and pseudonyms, DeLong said, along with the sex offender's real name, Social Security, home and school address, license plate number, a description of the vehicle, nicknames, real and purported birth dates and passport number.
- Check it again, I do not see where it says the federal law requires this.
States that fail to comply could lose 10 percent of their U.S. Justice Department's Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants, she said. West Virginia's projected share for 2009 was about $2 million, DeLong said. So the state could be out $200,000 if it isn't in compliance.
- And the last time I checked, that is called bribery!
Compliance will be difficult, said
Delegate Bill Wooten (
Email), D-Raleigh, a chairman of the joint judiciary subcommittee studying the issue.
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In West Virginia, as in most states, juvenile records are sealed, so it presents almost an insurmountable enforcement problem," Wooton said. "
Those records are sealed."
The federal government had initially required states to be in compliance this month for the act, which includes the Sex Offender Registration and Notification Act, or SORNA, DeLong told lawmakers.
However the state - and lawmakers - may have more time, as U.S. Attorney General Eric Holder in May authorized a one-year extension of the deadline, according to the U.S. Department of Justice.
Wooton said he was not aware of the extension at the federal level.
- Do you people every investigate what you are promoting? Apparently not. Yes, he extended the deadline to 2010.
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If it does not occur then we are not in compliance because the Legislature will lack the ability to change (the) law until next January," Wooton said.
The issue is similar to states following federal laws on seat belts and blood alcohol level or risk losing federal funds, said Senate Pensions Committee Chairman Dan Foster, D-Kanawha, a chairman of the judiciary subcommittee.
- More bribery! If you pass this law, we give you money, if you don't we take money away. Man, how corrupt, in your face, can you get!
"It's not an uncommon way for the federal government to not mandate something but to make a financial incentive," Foster said.
Lawmakers will address the differences between state and federal law in future meetings and will as a subcommittee make recommendations on whether it is good public policy to comply with the Adam Walsh Act, Wooton said. Wooton's goal was to have a recommendation ready in December.
Legislators also planned to look at practical problems stemming from current law, based on comments by Putnam County Circuit Court Judge O.C. Spaulding.
Spaulding told lawmakers that current state laws have unintended consequences and legislators should consider fine-tuning the system so more concentration is placed on targeting pedophiles as opposed to just cases involving minors.
The judge mentioned a litigant who, as a 32-year-old married father and active church member, was retroactively ordered to register as a sex offender for a consensual sexual act that occurred when he was 18. At the time, he had been "
making out" with a 14-year-old girl and was caught by her father and charged with a crime, Spaulding said.
After the man registered as a sex offender, no one would allow their children to come over to his house and his children were shunned, Spaulding said.
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He was 18, she was 14. He touched her breasts through clothing; that is a crime," Spaulding said after last week's legislative meeting. "
He suffered the punishment, but he shouldn't really be on the registration list for his entire life because of it."
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I want to see them focus more on pedophiles as opposed to the broad term of the victim being a minor," Spaulding said later. "
There's a clear distinction between the sexual knowledge of a 16-year-old and an 8-year-old. "
Spaulding also gave several examples of situations where sex offenders registered themselves but failed to meet the technicalities of making changes to the registration:
- A registered sex offender who lived in Kanawha County and worked in Putnam County registered with both counties. When he changed jobs to Kanawha County, he reported it to that county but not Putnam County and was indicted on a felony charge of failure to make a registration change.
- A registered sex offender's job required him to travel to different sites in Kanawha and Putnam counties, and so under current laws he must go to the police detachment in that county each day before going to work to tell them where he will be that day. He failed to report one day and was charged.
- A registered sex offender's wife took out a loan and bought a new car for herself but both names were on the title. He was indicted for not registering her vehicle.
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I'd like to see the Legislature clarify place of employment," Spaulding said. "
Does that mean where you physically are every day or does that mean the address of your employer that you work for? Or does that mean where you regularly go and then get assigned out? We need to define that."
Sen. Frank Deem (
Email), R-Wood, asked Spaulding if judges could interpret the law as they would like it to be written.
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Judges have awesome power," Deem said.
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I took an oath to follow the law," Spaulding replied. "
If you don't change it, I'm going to apply it."
- Yes, and you took an oath to uphold the constitution as well, don't forget that, and by making these laws retroactive, you are violating that oath, and the law is unconstitutional!
"
I'm charged with administering justice," Spaulding added later. "
I'm glad we have the law, but as times go on we have to be willing to refine it to make it apply to the people it should apply to. We shouldn't get hung up on technical violations."
"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of a civilization. We must have a desire to rehabilitate into the world of industry, all those who have paid their dues in the hard coinage of punishment." - Winston Churchill (United States Constitution)
View the article here
07/19/2009
By LEE ROOD
_____ was 25 when he drove the 14-year-old girl from a Fayette city park to a secluded wooded area.
He was charged with kidnapping for locking her in his car and forcing her to have sex that day in 2005. The sentence he wound up with for sex abuse was typical: about four years in prison.
What will happen to _____ after he is paroled from the Mount Pleasant prison in January is anything but typical, however.
_____ will be among the first of thousands of sex offenders to be subject to monitoring for the rest of their lives by the Iowa Department of Corrections.
The state law requiring _____ to be subject to "
probation for life" was enacted in 2005. The law is intended to better protect Iowa children from sexual predators, who, previously, could walk out of prison after serving their time with few restrictions.
Few Iowans have been aware of the law change. Only this year, as the first of those offenders have begun to trickle out of prison, has the cost of the monitoring become a significant concern.
At a minimum, Iowa's experiment with lifetime monitoring will cost about $168 million over the next 20 years, a Des Moines Register analysis has found.
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This is going to be an extremely expensive piece of legislation," warned Phyllis Blood, a state analyst for the Iowa Division of Criminal and Juvenile Justice Planning.
Blood helped the Register determine some of the potential costs of the monitoring law.
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There will be people who were 15 years old at the time of their offense who will have to be supervised for life," she said.
The $168 million estimate represents the cost in today's dollars of the only two expenses that can measured - electronic monitors and probation officer salaries. The expenses will be needed for the almost 4,000 people expected to be added because of the special post-prison sentences to the 29,000 people already on state probation rolls.
The actual cost - which will also include various types of testing and post-prison counseling - is likely to be far higher, Blood and other state officials said.
Iowa's more intensive monitoring was part of the Legislature's response to public outrage over the highly publicized murder of Jetseta Gage, a Cedar Rapids 10-year-old, in 2005.
But state leaders are getting their first whiff of the fiscal impact this year, as they face a $1 billion gap between state revenues and state expenses projected for fiscal year 2011.
Unlike other states' laws, Iowa's "
special sentence" legislation provides no way to ever release someone from a lifetime of probation. That is likely to be a problem for the state, officials in other states say.
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It's an extremely good tool for the people who need it," said Wes Shipley, an adult probation supervisor for sex offenders in Maricopa County, Ariz. "
But there are people who get on lifetime probation who don't need it. You have to have a way to get them off."
Lifetime supervision for sex offenders is being tried in about 20 states, but Arizona in the mid-1980s was the first state to implement the monitoring. Today, more than 95 percent of the 1,600 sex offenders on probation in Maricopa County are on lifetime probation.
Already, Iowa corrections officials have told state leaders that absent more money, they will be forced to reduce supervision of other criminals to fulfill the requirement to track sex offenders for a lifetime.
Costs to treat, supervise and monitor sex offenders have already mushroomed - from $3.3 million to $11.5 million - between fiscal years 2005 and 2010, according to Iowa's Legislative Services Agency.
When questioned about the considerable tab yet to come, several state lawmakers said "
no price is too high" to spare even one child from sexual abuse.
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You can't put a price on public safety," said Rep. Deborah Berry, D-Waterloo, vice chairwoman of the House Public Safety Committee.
Sen. Keith Kreiman, D-Bloomfield, who chairs the Senate Judiciary Committee, said cost was discussed when the law was changed in 2005.
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But we decided that whatever the cost was, it was worth it," he said.
Mandate forces tough public-safety choices
Treatment experts, state corrections officials and law enforcement officials in other states, where lifetime sentences were begun years ago, say there are reasons lifetime supervision for so many sex offenders may not be a good idea.
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The problem is that in passing one-size-fits-all requirements, you dilute the resources for the people who really need to be watched," said Jill Levenson, a specialist on sex offender treatment and a professor at Lynn University in Boca Raton, Fla.
In Iowa, budget limits and existing requirements for sex offender monitoring have already forced the state to reduce supervision of other convicts on probation.
Sally Kreamer, who heads the corrections department in the Fifth Judicial District, said the growth in sex offenders will force probation officers to give other convicts less supervision.
She said her department already is foregoing electronic GPS monitoring of some criminals who are high risk to accommodate more sex offenders.
Kreamer said those who could be released from supervision in the future due to the requirement include drunken drivers with numerous convictions, batterers at risk to go after ex-wives again and people convicted of second-degree murder and rape.
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It's going to be a huge challenge for us if we don't have the resources," said Ron Mullen, who in May became superintendent of the Mount Pleasant prison, which houses a majority of Iowa's sex offenders who are behind bars.
"
I guess the jury's out as to the impact long-term."
Shipley, the Arizona probation official, said his state passed a law allowing judges to review some young offenders' cases annually so those who didn't need lifetime supervision could be released.
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If I got to make the rules, I would err on the side of safety, but I would make sure everyone got an annual review hearing," Shipley said.
"
We throw a lot of money at this. But this shouldn't be about the length of time you supervise. It should be the quality of the supervision."
Iowa's new special sentence legislation affects a larger swath of people convicted of sex crimes than even Arizona's law.
As in Arizona, anyone in Iowa convicted of a felony sex crime will receive lifetime probation.
Iowa's law also includes a 10-year special sentence with monitoring for people convicted of some less serious crimes, including indecent exposure, fondling or having sex with a minor.
State spending more on monitoring, prisons
Statistics provided by Blood, the criminal justice planning official, show the costs of the lifetime and 10-year "
special sentence" offenders, as well as other requirements of a 2005 sex offender act, will build until at least the year 2028. That's when the number of prisoners flowing from prisons and to probation is expected to stabilize, based on current projections.
The Legislature appropriated $9.9 million in additional money at the time the monitoring requirement passed. But much of that went toward an existing backlog of sex offenders awaiting state services. Corrections department officials say they know of no plan to cover the tab to come.
State analysts and corrections officials say it will also cost millions annually to provide the required prison aftercare, risk assessments, monitoring, DNA testing, polygraph testing and relapse prevention for the additional sex offenders over the next two decades.
Those offenders will be a more serious breed of criminal than most others typically tracked by probation through on-site checks, calls and electronic monitoring.
"
This is going to be a very different thing than we've ever had in the past," said Kreamer. "
We're going to be getting a lot of people straight out of prison who could be very, very high-risk."
Fred Scaletta, spokesman for the corrections department, said GPS monitoring of some lower-risk offenders will likely ease over time, provided offenders show they are complying with laws, have jobs and a stable place to live.
This year, lawmakers approved spending almost $130.7 million on a new prison and $30.6 million for 320 additional prisoners in community-based residential facilities - a decision necessitated in part by the growing number of sex offenders in prison and those being released.
At the end of the state's 2004 fiscal year, before the new sex offender law requiring special sentences went into effect, 12 percent of Iowa's prison population were sex offenders. By the end of fiscal 2008, 14 percent were sex offenders, according to the Division of Criminal and Juvenile Justice Planning.
Several lawmakers pledged at a government oversight committee meeting in June that they would do "
whatever it takes" to assure no sex offender goes unwatched.
Rep. Wayne Ford, D-Des Moines, suggested all of the more than 5,000 people currently on the state sex-offender registry - 86 percent of whom include offenders of minors - should be monitored by global-positioning ankle bracelets.
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The bottom line is we need to come up with the money and protect these kids," he said.
What does the research show?
Researchers caution against a one-size-fits-all approach to treating and managing sex offenders because each case is different, but legislatures have not always listened.
At least 20 states now require lifetime supervision for groups of sex offenders convicted of sex crimes involving minors, according to the National Conference of State Legislatures.
Proponents of lifetime supervision argue that sex offenders often can control their behavior, but do not always voluntarily choose to do so without being watched.
Wider supervision allows probation officers to respond to individual offender risks and needs, according to a report by the National Center for Sex Offender Management in 2000.
However, the center also noted that no research confirms that lifelong, across-the-board mandates are more effective than less expensive, more flexible alternatives.
Research in Iowa and nationally shows sex offenders who successfully complete treatment in prison — which can include counseling and behavior management — are less likely than other criminals to commit new offenses.
But other research shows those under special supervision are much more likely to return to prison after being put on probation. That’s because they are being watched more closely and are easier to catch committing parole violations, not necessarily new sex offenses, state officials say.
In Iowa, 27 of 139 sex offenders who require special supervision already have been sent to prison for violations, according to Mount Pleasant prison Superintendent Ron Mullen.
But studies also suggest that a majority of sex offenders never commit new offenses.
More than 60 percent of sex offenders are never convicted of new crimes — even after 20 years, according to one long-term study of Canadian sex offenders, said Jill Levenson, a sex offender specialist in Boca Raton, Fla.
“Unfortunately, although it is not pleasant to accept, we are probably never going to prevent every random act of terrible violence, and no strategy is perfect,” Levenson said. “There are always going to be some who reoffend that you thought never would.”
Iowa’s criteria for lifetime/10-year monitoring
The special sentence legislation went into effect on July 1, 2005, and applies to all offenders convicted of a sexual offense that occurred on or after that date. The special sentence is imposed only after the offender successfully completes his or her original sentence, whether that be probation or incarceration.
Those convicted of less-serious crimes receive 10-year special sentences, which can be reduced to roughly half with earned time. Offenders convicted of more serious felony crimes are subject to the lifetime supervision. Unlike those with 10-year special sentences, they will never be eligible for “earned time” and no judge can eliminate the mandatory supervision.
Figuring electronic monitoring costs for offenders
Consider the expense of tracking George _____, the relatively young sex offender convicted in 2005, by GPS. Using today’s costs to the Iowa Department of Corrections, the 29-year-old’s ankle bracelet will cost $7.50 a day— a proposition that could total $82,125 over 30 years.
Probation officials may ultimately determine _____ does not need a bracelet in old age, but many high-risk sex offenders require GPS tracking into their 60s and 70s, corrections officials say.
The Des Moines Register found that by 2028, the annual cost of GPS monitoring for the 3,943 additional people on special sentences would top $117.2 million.
Corrections officials are developing a new risk-based criteria to determine who will be subject to electronic monitoring going forward. Still, they anticipate the state will need many more GPS tracking devices, probation officers and polygraphs to comply with the requirements of the special sentence law.
More than half of the people on electronic monitoring statewide in 2007 were sex offenders: 363 of 633, according to a 2008 state report. Others included drug offenders, drunken drivers and those accused of violent crimes like kidnapping, murder or assault.
Needed: More probation officers, more money
Sex offenders will require the state’s most experienced probation officers and be subject to taxpayer-financed requirements, such as post-release counseling, DNA testing and polygraphs.
Corrections officials have predicted the number of probation officers will need to grow by at least 77 by the year 2018, up from about 47 this year.
Even if the number of probation officers was kept to 80, the amount in probation salaries alone for the special sentence population would be $50.5 million in 20 years, according to Phyllis Blood, a state crime analyst. That amount is in today’s dollars and is an underestimate of the real cost, she said.
How much time do they actually spend in prison?
Iowa sex offenders made up about 12 percent of Iowa’s prison population in 2005, but the number has grown to 14 percent since the Legislature required lifetime monitoring and other tougher changes to the state’s sex offender laws.
All sex offenders are required to receive treatment while in prison, which must be completed successfully to earn time off their sentences. Before release, they typically are transferred to residential facilities where they are granted work release and finish treatment.
Receiving the maximum amount of earned time, sex offenders are likely to serve the following:
- Aggravated misdemeanor: 10.9 months
- Class D felony: 27.3 months.
- Class C felony: 54.6 months.
- Class B felony: 17.6 to 21.3 years
- Class A felony: Life in prison
"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of a civilization. We must have a desire to rehabilitate into the world of industry, all those who have paid their dues in the hard coinage of punishment." - Winston Churchill (United States Constitution)
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